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Name: People v. Cervantes
Case #: B145387
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 01/24/2002
Subsequent History: Rev. granted 4/10/02.
Summary

The “Three Strikes” law and the “One Strike” law (Pen. Code, sec. 667.61) are cumulative sentencing schemes. Application of one does not exclude application of the other. However, the same prior conviction may only be used once to enhance the sentence. Here, appellant was convicted of a rape by foreign object, and had a prior conviction for rape in concert, which made him eligible for sentencing under section 667.61. Although the trial court could sentence appellant under both section 667.61 and the “two strikes” law, it could only use appellant’s prior rape in concert conviction once. However, since appellant also had a prior conviction for residential burglary, the court could properly impose a 50-year-to-life sentence. Further, an additional five year term should have been imposed under section 667, subdivision (a), and the sentence was therefore modified accordingly.